Revenge Porn: A 21st Century Constitutional Challenge

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

–The First Amendment of the United States Constitution

These words have governed our country for 250 years and continue to do so. But something is challenging the First Amendment that we all hold so near and dear to our hearts as Americans. Two words: revenge porn. The question is how to address it? One way to address revenge porn is through a civil rights lens. The problem with a civil rights approach is that a plaintiff would need to prove that the person who posted the revenge porn was motivated due to the victims’ race, sex, gender, or sexual orientation, which is too broad and could violate the First Amendment. In my opinion, the most effective way to eliminate revenge porn is through targeted laws allowing people to remove content that they post or others post about them.

Revenge porn is a phenomenon where people’s exes post (usually compromising) images of their former significant other. These images are accompanied by personal information, such as name, employer, address, telephone number, and sometimes, social media accounts.

Danielle Citron, a professor at the University of Maryland Law School, argues in Cyber Civil Rightsthat cyber bulling is a civil rights issues. Citron states that, “[t]oday’s cyber attack groups update a history of anonymous mobs coming together to victimize and subjugate vulnerable people” (Citron 62). She asserts that women, minorities, and the LGBT community receive the highest levels of cyberbulling, which constitutes a civil rights violation, stating, “[t]hese attacks perpetuate economic intimidation and suppress civil engagement, depriving vulnerable individuals of their equal right to participate in social, economic, and political life” (Citron 84-86; 90). Citron emphasizes that this cyber mob activity largely targets minorities and women, citing a 2006 study which cites that individuals writing under female names received twenty-five times more sexually threatening and malicious comments than writers under male names (65). Citron specifically addresses the topic of revenge porn in a September 23, 2013 New York Timesarticle, where she states ““It’s just an easy way to make people unemployable, undatable and potentially at physical risk” (Goode A11). Citron believes that to understand/regulate/legislate/etc. cyberbullying, we need to take a civil rights approach, in which vulnerable people are attacked because of their vulnerability.

The problem with Citron’s suggestion is that civil rights legislation is broad, and broad laws that prohibit content run into First Amendment challenges. The Supreme Court rulings Reno v. ACLU(1999) demonstrated this point, where the Supreme Court struck down a section of the Communication Decency Act (1996) prohibiting the distribution of “obscenity” to minors as too broad and carrying the potential for a chilling effect on free speech and expression. In Citron’s argument, it seems that there would need to be evidence that a revenge porn post was because a person was a certain race, sex, gender, or sexual orientation. These factors, while likely playing some part, is probably minimal when someone decides whether or not to post a revenge porn post of an ex.

When looking at specific legislation, I think a good place to look is California. In the 2013 legislative session, the state legislature passed Senate Bill (SB) 568. This law requires Internet platforms to remove from public view content at the request of a California minor. While critics point out that the law only applies to sites and apps aimed at “minors,” could chill user-generated content, and does not apply to content others have reposted, I think giving people control over their content is a step in the right direction. In terms of revenge porn, it falls a bit short, but this law is a step in empowering people to have control over their content. Laws like these will not subvert the First Amendment, in that it does not prohibit content, but allows citizens to decide what they want on the Internet and what they do not.